BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON TRANSPORTATION AND HOUSING
                              Senator Jim Beall, Chair
                                2015 - 2016  Regular 

          Bill No:          SB 868            Hearing Date:    4/5/2016
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          |Author:   |Jackson                                               |
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          |Version:  |3/28/2016    Amended                                  |
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          |Urgency:  |No                     |Fiscal:      |Yes             |
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          |Consultant|Randy Chinn                                           |
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          SUBJECT:  State Remote Piloted Aircraft Act


            DIGEST:  This bill establishes rules on where and how remote  
          piloted aircraft (i.e., drones) may operate.

          ANALYSIS:
          
          Existing federal regulations require all drone owners to  
          register their drones with the Federal Aviation Administration  
          (FAA).  Commercial drone operators, but not recreational drone  
          operators, must also obtain FAA authorization, which is granted  
          on a case-by-case basis.  

          Existing law establishes a Division of Aeronautics within the  
          California Department of Transportation (Caltrans).

          This bill:

          1)Prohibits the operation of a drone in the following  
            circumstances without consent of the property owner or manager  
            or Office of Emergency Services (OES), as specified:
             a)   Within 500 feet of critical infrastructure designated by  
               the OES, unless the operator is an FAA authorized  
               commercial operator who does not interfere with the  
               operation of the critical infrastructure;
             b)   Within 1,000 feet of a heliport;
             c)   Within five miles of an airport;
             d)   Within any other area where Caltrans or OES determines  
               that drone usage creates an imminent danger to public  








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               health and safety;
             e)   Within the airspace of the state park system;
             f)   Within the airspace of lands or waters managed by the  
               Department of Fish and Wildlife; and
             g)   Within 500 feet of the State Capitol or other building  
               housing state legislative offices and chambers, unless the  
               operator is an FAA-authorized commercial operator who does  
               not interfere with the operation of the critical  
               infrastructure.

          1)Prohibits the operation of a drone in a manner that:
             a)   Interferes with manned aircraft;
             b)   Is prohibited by federal statute or regulation;
             c)   Is careless or reckless and endangers life or property;
             d)   Constitutes a nuisance under section 3479 of the civil  
               code;
             e)   Violates an individual's right to privacy under the  
               California constitution; and
             f)   Constitutes trespass under California law.

          1)Prohibits the weaponization of drones.

          2)Authorizes operating a drone:
             a)   Above any property to which the drone operator has a  
               right of entry.
             b)   Above state property if the operator has received a  
               permit from the California Film Commission.
             c)   In any airspace deemed necessary by the operator to  
               avoid imminent danger to the life and safety of another  
               person or the public.

          1)Requires:
             a)   Every commercial operator of a drone to procure adequate  
               protection against liability.
             b)   Every drone to give way to manned aircraft.
             c)   Every drone operator to comply with all licensing,  
               registration, and marking requirements of the FAA.

          1)Caltrans:
             a)   Shall develop rules and regulations to enforce these  
               provisions and shall cooperate with the federal government  
               and other political subdivisions in California.
             b)   May represent the state in drone matters before federal  
               and other agencies.
             c)   May participate as plaintiff or defendant or intervenor  









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               on behalf of the state.
             d)   May assist political subdivisions and their law  
               enforcement agencies with the regulations.
             e)   May enforce these rules and regulations by injunction or  
               other legal process in federal, state, and local courts.

          Violations of Caltrans' rules and regulations are subject to a  
          fine of not more than $1,000 or imprisonment by not more than  
          six months, or both.  Appeals of these violations shall be made  
          to the California Transportation Commission.
          OES is authorized to adopt regulations regarding the prohibition  
          against operating drones within 500 feet of critical  
          infrastructure or in any other area where unrestricted drone  
          operation presents an imminent danger to public health and  
          safety.

          Operation of a drone in violation of the prohibition against  
          operation in the state park system shall be enforced exclusively  
          by the Department of Parks and Recreation.  Violations are  
          either misdemeanors, punishable by up to 90 days in jail, or a  
          fine of up to $1,000, or both; or infractions punishable by a  
          fine of up to $1,000.

          Operation of a drone in violation of the prohibition against  
          operation above lands or waters managed by the Department of  
          Fish and Wildlife shall be enforced exclusively by that  
          department.  Violations are misdemeanors.

          Operation of a drone in violation of the prohibition against  
          operation above the State Capitol and related buildings shall be  
          enforced exclusively by the California Highway Patrol (CHP).   
          Violations are misdemeanors.

          The provisions of this bill are severable.  If any part of this  
          bill is found to be invalid, the remaining parts of the bill are  
          unaffected.

          COMMENTS:
          
          Author's statement.  According to the author, the development of  
          small unmanned aircraft systems (i.e., drones) promises to  
          revolutionize the way Californians interact with each other and  
          their environment.  However, the lack of clear rules governing  
          the use of this emerging technology threatens to harm  
          California's natural resources and undermine public safety.  To  









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          date, the lack of regulation has led to disputes between  
          neighbors concerned about invasions of their privacy, impacts to  
          wildlife, near collisions with airplanes and helicopters,  
          interference with firefighting efforts, and accidents injuring  
          innocent bystanders.  Some individuals are reportedly modifying  
          drones to carry weapons, and, in at least one instance, a drone  
          was used to land radioactive material on the roof of a  
          government building.  

          Commonsense rules are needed to ensure that drones are used in a  
          safe and responsible manner, consistent with the values of the  
          people of the state of California.

          Background.  Moving beyond hobbyists and the military, drones  
          are increasingly a part of commercial and recreational  
          activities.  In fields as diverse as agriculture, filmmaking,  
          electric utility service, and public safety, drones can monitor,  
          track, and provide surveillance in many useful and previously  
          undoable ways.  Amazon and Google are experimenting with using  
          drones to speed package delivery.  Drones have become easier to  
          use and have become less costly.  This, combined with improved  
          cameras and sensors, has caused drone sales to take off, so to  
          speak.  The FAA estimated that 1 million drones would be sold  
          during the 2015 Christmas season.  Compared to 2014, the  
          Consumer Electronics Association estimated that drone sales  
          would increase by 63% in 2015.

          Drones will play an increasingly visible role in our future.   
          They will be used by many businesses and government entities to  
          do their jobs better and more efficiently, and they'll be used  
          by our friends and neighbors for recreation.  They will also be  
          over our heads, whether in the park, at the mall, or in our  
          backyards.  

          The remarkable growth in drone usage creates issues.  Foremost  
          is public safety, as drones can imperil aircraft, as recent  
          incidents with commercial aviation and forest fire-fighting  
          aircraft demonstrate.  The FAA has noted that, "Incidents  
          involving unauthorized and unsafe use of small,  
          remote-controlled aircraft have risen dramatically.  Pilot  
          reports of interactions with suspected unmanned aircraft have  
          increased from 238 sightings in all of 2014 to 780 through  












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          August of this year (2015)."<1>  The safety of the public on the  
          ground is also potentially at risk, as drones can crash, be  
          mispiloted, or simply malfunction.  Drones can also be used for  
          harmful purposes, as in the case of transporting contraband into  
          prisons or as a means for conveying explosives or other  
          dangerous materials.  And there are the more conventional  
          concerns about privacy and nuisance behavior.

          Current drone regulation.  The FAA does not permit commercial  
          drone operation except on a case-by-case basis.  However, in  
          February 2015, the FAA proposed regulations on commercial drone  
          users.  Among the proposals was a 55-pound weight limitation,  
          line-of-sight operation, maximum airspeed of 100 mph, a ban on  
          operation over any people, a maximum operating altitude of 500  
          feet, and training and licensing for the operator.  Those rules  
          have not been finalized but are expected by mid-year.  

          In December 2015, the FAA required commercial and recreational  
          drone users to register their drones.  Nearly 300,000 drone  
          users registered within the first 30 days, according to the FAA.  
           This is modest success given the more than 1 million drones in  
          use.

          Several California local governments have enacted their own  
          drone regulations.  In October 2015, the City of Los Angeles  
          enacted drone regulations similar to the FAA proposal.  In  
          December, the city filed the first criminal charges under the  
          ordinance, citing two individuals for operating a drone which  
          interfered with a Los Angeles Police Department air unit,  
          causing it to change its landing path.  In northern California,  
          the Golden Gate Bridge, Highway and Transportation District  
          banned drones near the Golden Gate Bridge after a drone crashed  
          on the roadway.

          Jurisdiction.  The dividing line between state and federal  
          jurisdiction of drones is fuzzy.  The most recent and directly  
          relevant guidance is perhaps the December 17, 2015, fact sheet  
          issued by the FAA's Office of the Chief Counsel, cited above.   
          It notes that "a navigable airspace free from inconsistent state  
          and local restrictions is essential to the maintenance of a safe  
          and sound air transportation system."   Quoting the fact sheet,  
          "Laws traditionally related to state and local police power -  

          ---------------------------
          <1> FAA Office of the Chief Counsel; "State and Local Regulation  
          of Unmanned Aircraft systems (UAS) Fact Sheet"; December 17,  
          2015.








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          including land use, zoning, privacy, trespass, and law  
          enforcement operations - generally are not subject to federal  
          regulation."  Cited examples include prohibiting drones from  
          being used for voyeurism, prohibitions on using drones for  
          hunting or fishing, and prohibitions on attaching weapons to  
          drones.

          The fact sheet notes that mandating equipment or training for  
          drones related to aviation safety would likely be preempted by  
          federal law.  State drone registration requirements are barred.

          Other areas are less clear.  Operational restrictions on drones,  
          including altitude and flight paths, operational bans, and any  
          regulations of navigable airspace are areas where consultation  
          with the FAA is recommended by the Fact Sheet.  Many of the  
          provisions of this bill create no-fly zones and impose  
          operational restrictions, which fall into this jurisdictionally  
          unclear area, neither clearly authorized nor clearly preempted.

          As noted above, the fuzzy jurisdictional lines have not  
          prevented the City of Los Angeles and the Golden Gate Bridge,  
          Highway and Transportation District from imposing their own  
          rules.

          Caltrans.  This bill requires the development of implementing  
          regulations by Caltrans.  While this may seem an odd assignment,  
          within Caltrans resides the Division of Aeronautics, a 25-person  
          unit which deals with siting, planning, and inspection issues at  
          public-use airports.  These are airports open to the general  
          public, such as Sacramento Executive Airport, and do not include  
          the large commercial airports, such as Sacramento International  
          Airport.  Caltrans is the only state agency with any dealings or  
          familiarity with the FAA and is therefore the best, though  
          imperfect, fit for these regulatory duties.

          Insurance requirement.  This bill requires every commercial  
          drone operator, and any person using, operating, or renting a  
          drone with the permission of a commercial operator, to procure  
          liability insurance.  The amount of insurance shall be  
          determined by Caltrans, after a public hearing, at a level  
          necessary to provide adequate compensation for liability or  
          damages incurred involving operation of a drone.  Recreational  
          and other non-commercial drone operators are not required to  
          obtain insurance by this legislation, although many may have  
          coverage through existing homeowners' insurance policies.   









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          Commercial liability insurance is generally broadly  
          encompassing, and large commercial businesses carry such  
          coverage or have deep enough pockets to cover most liability or  
          damages.  More risky are small or new businesses which may not  
          carry adequate insurance for the potential risks they pose to  
          the public.

          Enforcement.  The most difficult issue in the bill is  
          enforcement.  Policing no-fly zones or tracking down nuisance or  
          dangerous drones is exceedingly difficult, given their mobility  
          and small size.  Moreover, despite the federal requirement,  
          many, if not most, drones do not have individual identifying  
          markings.  Locating the operator of an anonymous captured drone  
          would be very challenging, given that the operator may be  
          hundreds of yards away in any direction.

          This bill provides enforcement authority to Caltrans, the  
          Department of Parks and Recreation, the Department of Fish and  
          Wildlife, and the CHP, depending on the location of the  
          violation.  Violations are misdemeanors which could involve jail  
          time, fines, or both.

          Opposition.  A coalition of drone manufacturers and drone users  
          opposes this bill.  They contend that the bill needlessly  
          addresses already prohibited conduct (e.g., eavesdropping and  
          Peeping Tom), creates a new insurance requirement without  
          justification, and is preempted by federal law.  The coalition  
          is concerned that this bill will deter future innovation and  
          investment in California in the drone industry.

          Double-referral.  This bill has also been referred to the Senate  
          Public Safety Committee.

          Related Legislation:
          
          SB 142 (Jackson, 2015) - operation of a drone below the  
          navigable airspace overlying the property of another without  
          permission is trespassing.  This bill was vetoed by the  
          Governor.

          SB 170 (Gaines, 2015) - prohibits operation of a drone over a  
          jail.  This bill was vetoed by the Governor.
          SB 271 (Gaines, 2015) - prohibits operation of a drone over a  
          K-12 school campus or the taking of pictures by a drone of a  
          K-12 campus without permission.  This bill was vetoed by the  









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          Governor.

          AB 14 (Waldron, 2015) - established a drone task force to  
          recommend policies regarding drone use.  This bill failed  
          passage in the Assembly Transportation Committee.

          FISCAL EFFECT:  Appropriation:  No    Fiscal Com.:  Yes     
          Local:  Yes


            POSITIONS:  (Communicated to the committee before noon on  
          Wednesday,
                          March 30, 2016.)
          
           SUPPORT:  

          City of West Hollywood

          OPPOSITION:

          Academy of Model Aeronautics
          Association for Unmanned Vehicle Systems International
          California Chamber of Commerce
          Consumer Technology Association
          CTIA - The Wireless Association
          Small UAV Coalition
          3D Robotics
          DJI
          GoPro, Inc.
          Yuneec USA Inc.

          
          

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